Complaints of retaliation have overtaken race as the most common EEOC allegation made by workers against their employer. And now that the U.S. Supreme Court has expanded who can claim retaliation, the number of these types of complaints can be expected to continue to rise.
Equal Employment Opportunity Commission statistics for the last fiscal year show almost 100,000 different charges alleged by workers. Retaliation accounted for 36,258 charges, or 36.3 percent of all filings. Race, which has been the most common complaint received by the EEOC for nearly two decades, accounted for 35.9 percent of complaints last year. Sex discrimination was third, at 29.1 percent.
Retaliation complaints have been increasing for years. In 1992, the first year data is available, the EEOC reported retaliation complaints accounted for 15.3 percent of the total it received for the year. That was well behind race (40.9 percent), sex (30.1 percent), and age (27.1 percent) complaints.
$2 million settlement in Sonic Drive-In case
In the 18 years since, with only a single exception, retaliation complaints have increased as a percentage of the filings received by the EEOC.
The EEOC says retaliation “occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity.”
One look at the list of settlements and court awards on the EEOC website is enough to see how prominently retaliation claims figure into the cases. Last month, a single Sonic Drive-In in New Mexico settled a harassment and retaliation discrimination case for $2 million.
In another case last month, a Missouri women’s shelter agreed to pay $103,000 to settle a retaliation claim by two women employees who complained about improper touching by the shelter director, also a woman.
Dozens of these cases have been settled or filed in just the last year. Now, the U.S. Supreme Court has opened the door wider for employees to claim retaliation.
Possible ramifications “you may not have foreseen”
In Thompson v. North American Stainless, LP the court, without dissent, ruled that a worker against whom an adverse action is taken in reprisal for a protected action by another may be able to claim retaliation. The so-called third-party retaliation in this case arose when an employee was fired three weeks after his fiancé filed a sex discrimination complaint with the EEOC.
“We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired,” said the court. How close the connection has to be for a claim of retaliation to arise wasn’t detailed.
“We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful,” said the court, adding at a later point in the short decision, “Given the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII’s anti-retaliation provision is simply not reducible to a comprehensive set of clear rules. ”
In a discussion of the case and its implications, attorney Anne E. Larson, chair of the labor & employment group at Much Shelist Denenberg Ament & Rubenstein, said the case has “ramifications for (employers) in circumstances you may not have foreseen.”
She offered up a situation where a sister complained of sexual discrimination, and her brother was fired. He had been warned verbally about his performance in the past, but nothing was put in writing. Can he now claim third-party retaliation because of his sister’s complaint, which is a protected action under Title VII?
The answer, says Larson, is yes. What she doesn’t say is what his chances are. But with nothing in writing, you don’t need a lawyer to figure that one out.